Transitional justice and the brazilian amnesty law

the habermasian theory of communicative action as a critique of the STF’s decision in ADPF 153

Abstract

From the perspective of the Habermasian theory of communicative action, the article critically reflects on the judgment of ADPF 153, through which the STF, facing for the first time the issue of transitional justice in Brazil, declared, by seven votes to two, the legitimacy and the receptivity of the Brazilian amnesty law in the face of the current constitutional order, and the point of contact found in all the votes that formed the winning majority was the exaltation of an "agreement" made between civil society and agents of the dictatorial regime, as well as the defense that if consensus had not been reached in that historical context, the violence would not have ceased and the country would not have made the transition from authoritarian rule to democracy. However, if the judgment of ADPF 153 considered, at the domestic level, Law No. Gomes Lund (“Guerrilha do Araguaia”) and Vladimir Herzog, incompatible with the American Convention on Human Rights. This contradiction only reveals the need to debate the illegitimacy of the Brazilian amnesty law, as it was voted in an environment that made the existence of a democratic deliberative process impossible, contrary to Habermasian communicative action, and applied without normative coherence and integrity, given that at the judging as accepted by the 1988 Constitution the amnesty extended to crimes against humanity committed by agents of repression, the STF failed to defend human rights, a universalist core principle and justifier of the Democratic State of Law, in the Habermasian conception.